What is Defamation of Character? | How to Prove and Deal It

Defamation of character is the assertion of a false statement as a fact about someone which negatively affects the person’s reputation with others.

Defamation of character would often lead to a form of injury to the person or their interests. This means that spreading false stories about a business competitor to damage their goodwill in the market will most likely qualify as a defamation of character than the revelations of an embarrassing clubhouse incident by an embittered person. The key difference here is the falsity of the statements made. The tort of defamation is rooted in common law practice, but the cause of action has been legislated into statutes in many jurisdictions. What constitutes defamation of character would often depend on the circumstances of each case and the laws or interpretation of laws in that jurisdiction.

Defamation of character can occur in the form of libel or slander.

• Libel is the written and published form of defamation. The publication of a libelous statement can be in a tweet or a message on a closed social media group and does not necessarily have to be in a newspaper or on a billboard.
• Slander is the oral or spoken form of defamation. Such a statement must have been heard by at least one person other than the person being slandered.

The types of defamation of character include:

1. Per Quod: This occurs when a person claiming defamation of character must prove that there were actual damages caused by the publication of the false statement e.g., loss of earnings or employment, decrease in the patronage of services.
2. Per Se: This is an exception to the rule to prove the injury or damages resulting from a defamatory statement. A defamation per se presumes that damage has been done to the defamed person and does not require proof of actual damages. This kind of defamation will occur in the following scenarios:
   • Imputation of Criminal conduct: Making false statements that a person has committed a crime or served jail time or calling someone a criminal is defamation per se. 
   • Loathsome Disease: A false claim that a person suffers from a loathsome disease e.g., leprosy.
   • Claims of unchastity: A false statement that a person has been unfaithful in their marriage.
   • A false statement about a person’s business or professional interests.

How to Prove Defamation of Character in a Lawsuit

–          Elements of Defamation of Character

There are at least four requirements to prove that a statement is defamatory in a lawsuit.

That the statement was false and about you

Falsity is the most vital element in a claim of defamation. A person claiming defamation of character must clearly show that the statement or assertion made was false. To prove this, the false statement must have been presented as a fact by the maker when in reality the statement was untrue as at the time it was published.

A random opinion by a blogger or an insulting review by a customer on a product will most likely not pass for a defamatory statement.

In cases where the name of the person subjected to defamation was not mentioned, it must be proved that from the information provided, Plaintiff can be identified as the person being defamed.

The false statement was published

The publication of a defamatory statement need not be publicly done in a newspaper or radio broadcast. This element may be fulfilled even by writing a private letter or email correspondence to just one person other than the person who is the subject of the statement. The publication is also deemed to have been made if it was verbally done.

In Kmart Corp v. Washington, a communication of the defamatory statement to the witness and the people in the parking lot was held to be sufficient for the publication element. However, there are some exceptions to this rule such as privileged statements that will be discussed further in this article.

The false statement was defamatory in nature

The First Amendment protects the freedom of speech or opinion. As such, not every untrue statement will qualify in a defamatory lawsuit. For instance, an expression of an opinion or an untrue statement about a public case which the reporter could have reasonably or innocently believed to be true will not be regarded to have a defamatory construction.

In some instances, the plaintiff must prove that there was at least negligence or actual knowledge or fault on the part of the publisher to know that the statement was false. However, in some jurisdictions such as New York, proof of “recklessness” on the part of the maker of the statement is required to establish defamation against private figures involved in cases of legitimate public concern.

Public officials and figures have more to prove

The standard of proof is higher in cases involving public figures or public officials or public cases. In New York Times Co. v. Sullivan, where Sullivan, an elected Alabama City Commissioner, filed a lawsuit against New York Times for mistakes in their report of an incident involving civil rights demonstration. The Supreme Court held that public figures must prove that there was actual malice or a “reckless disregard” by the defendant of whether the statement was false or not. The Court’s rationale was to protect the (First Amendment) freedom of the press in reporting public cases or debates.

That the publication of the false statement resulted in damage to the reputation or interests of the person who was defamed

This element is automatically fulfilled in statements that are defamatory per se. For defamation per quod cases, the Plaintiff must prove that the publication of the defamatory statement resulted in damage to reputation or a loss of opportunities or earnings e.g., termination of employment or reduction in sales.

In modern times, false statements (also known as negative or controversial publicity) that result in a boost in social media or political reputation of a person without some other form of injury to their other interests may not qualify as a defamation of character.

How to Deal with Defamation of Character

There are different options available to a person who has been subject to a defamation of character to deal with the situation. These options include:

Filing defamation of character lawsuit

This is often the option that readily comes to mind. While the results can be tempting, the process can be extremely time-consuming, expensive, highly technical to navigate, and with a higher risk of losing the claim.

Sending a letter of complaint

This is a more amicable way of settling a defamation case without giving further publicity to the matter. Often, the publication of a false statement may have been innocent on the part of the maker. In other cases, the maker is a friendly party or someone that the Claimant would rather not sue (e.g., a prospective future employer).

A complaint letter of defamation can also be a good “take-down” tactic when all the elements for proving a case of defamation are not present e.g., there is no harm done to the person’s reputation yet. This kind of letter should be used when the maker of the defamatory statement is presumed as reasonable and would do the needful.

A letter of complaint should follow the following structure:

• Identify the person being subjected to the defamatory statement
• Where the statement or publication was made and how the person’s attention was drawn to the situation
• Who made or published the statement
• Why the statement is false
• The injury or harm the publication of the false statement is creating or likely to create
• A request to stop or retract or take down the publication of the false statement

A demand letter

A demand letter also follows the above structure, but it is more “threatening” in nature and often demands the same compensation in a lawsuit or something close. A demand letter can also request an apology to be published. In many cases, a demand letter sets the ground for filing a lawsuit or an out-of-court settlement.

Either a letter of complaint or demand letter can be titled as a cease-and-desist letter. Check out a sample cease-and-desist letter for defamation of character.

Exceptions to Defamation of Character

A defendant to a claim for defamation of character may plead justification of action. The justification can be based on the following grounds:

• Truth: Following the case of People v. Crosswell (which led to the imprisonment of a publisher for libel without allowing him to prove the truth of his assertions), and the counter-reaction by the New York Legislature in 1805, the courts have now taken the stance that the proof that an otherwise defamatory statement is true acts as a complete defense to a defamation of character lawsuit.
  
  Some courts have also adopted the substantial-truth doctrine where a defendant is not held liable so far as the “gist” of the story is accurate. The principle recognizes that people, especially pressmen, can make innocent mistakes in their statements.

• Privileged Communication: Statements made in court and legislative houses are treated as privileged and are not legally actionable as defamatory statements. Communications between married couples are also considered as privileged. Privileged communication is also a complete defense to a defamation lawsuit.
• Statute of Limitations: A statute of limitation is a “stopwatch” on the right of a Plaintiff to bring an action against a defendant. Defamation cases are subject to the statute of limitations on personal injury lawsuits.
  
  The statute of limitations on cases of defamation varies from state to state in the U.S. It is usually between 1 – 3 years from the date the statement was published.

A claim of damages is predicated on the conclusion that the person who has been subjected to a defamatory statement is entitled to compensation for the harm done to his reputation or the loss of earnings. Damages in defamatory actions can be claimed in different categories, namely:

• Actual damages: This is meant to be restorative in nature. Actual damages include losses that are quantifiable in monetary terms e.g., loss of employment or reduction in the usual percentage of ticket sales.
• Punitive damages: As the name implies, it is intended to make an example of the defendant and serve as a deterrence to others. There must be malicious or fraudulent intent to obtain punitive damages.
• Presumed damages: This is awarded on the premise that the defamatory statements have necessarily caused or assumed to have caused harm by the mere publication. This type of compensation is usually available only in libelous cases.

Claiming damages for pain and suffering

A person who is a subject of a defamatory statement may also claim damages for personal “pain and suffering” caused by the publication of a defamatory statement. “Pain and suffering” in this instance would mean the mental stress or anxiety or some other form of psychological effect that the defamatory statement had caused the plaintiff. A log of events and expert testimony (a psychologist) can go a long way to prove and claim damages for pain and suffering.

Writing a Demand Letter for Settlement of Defamation of Character Claim

If a person has suffered defamation of character and is considering filing a lawsuit or has filed the same but judgment is yet to be delivered, the law permits for settlement between both parties. In 2017, there was a reported settlement of $500,000 for a defamatory statement made on Facebook which had stated that a woman had gotten drunk and caused the death of her child.

A settlement involves compromise and potentially cuts down on the length of the court process, the publicity, and the risk of losing the lawsuit altogether.

A demand letter for settlement should be accompanied with evidence such as a copy of a libelous statement or recording of a slander, receipts, or proofs of loss of earnings, or opportunities such as rejection letters or account statements.